Bedford v. Kissick

• Decision Date: 26 May 1896
• Citation: 8 S.D. 586,67 N.W. 609
• Parties: BEDFORD, Plaintiff and respondent, v. KISSICK et al. Defendants and appellants.
• Court: South Dakota Supreme Court

8 S.D. 586

67 N.W. 609

BEDFORD, Plaintiff and respondent,

v.

KISSICK et al. Defendants and appellants. South Dakota Supreme Court Appeal from Circuit Court, Lawrence County, SD Hon. A. J. Plowman, Judge Reversed J. P. Wilson Attorneys for appellant., Joseph B. Moore Attorneys for respondent. Opinion filed May 26, 1896

CORSON, P. J.

This was an action originally commenced in a justice court to recover $55, the balance due on contract for work and labor. After a trial in the justice court the case was appealed to the circuit court, and that court directed a verdict for the plaintiff. From an order denying a new trial defendants appeal.

The respondents make a preliminary objection that the record discloses no judgment in the case. But this is not necessary when the appeal is from the order only denying a motion for a new trial. An order granting or denying a new trial is an appealable order. Comp. Laws, § 5236, Subd. 3. And if the order denying a new trial is reversed, its effect is to vacate the judgment if any has been entered. Thompson v. Smith, 28 Cal, 528; Kower v. Gluck, 33 Cal. 401; Bronner v. Wetzlar, 25 Cal. 419; Gross v. Kellehar, 80 Cal. 519, 22 Pac. 293. Respondent further contends that, as the abstract does not contain the evidence in full as contained in the bill of exceptions, it ought to be disregarded. And counsel files an additional abstract showing that in the bill of exceptions the evidence was set out by question and answer. The learned counsel has evidently misconceived the purpose and object of an abstract. The theory of an abstract is that it shall bring before the court, in as brief and succint a form as possible, so much of the bill of exceptions as may be neccessary to enable this court to decide the points in controversy. Rule 12 prescribes the method of setting out the various proceedings, and contains this important suggestion: “Preserve everything material to the question to be decided, and omit everything else.” It is rarely necessary to present the evidence by question and answer in an abstract, unless in the case of questions objected to, or which, for some other reason, become important. The counsel for the appellant in this case has followed the rules of the court closely, and has presented a clear and succinct statement of the facts necessary to present the questions to be decided by this court.

The defendants denied the allegations in the complaint, and set up as a defense that one Campbell recovered judgment against the plaintiff in a justice’s court, and that under an execution issued upon that judgment the constable levied upon the indebtedness sued upon in this action, and that the defendants paid the amount due the plaintiff to said constable, who applied the same in satisfaction of his said execution and returned the same fully satisfied. On the trial the defendants proved the facts alleged as to the execution and proved an attempted levy of the same. The execution was issued June 12th, and on the same day the constable served the same upon the defendants, but the defendants declined to make any statement of their indebtedness to the plaintiff. The execution was renewed July 11th, and August 10th, as provided by Sec. 6116, Comp. Laws, and on August 27th the defendants paid the said constable $60, the amount due the plaintiff from them on his contract, and...